The recent announcement that England’s Prince Harry is engaged to American, Meghan Markle has generated worldwide excitement and interest. As immigration lawyers, it made us reflect on the issues relating to dual nationality.
While Meghan’s marriage will most likely make her eligible for U.K. citizenship, she is also likely to be named the Duchess of Sussex. Will the U.K. demand that she renounce her U.S. citizenship? If she doesn’t renounce her U.S. citizenship, will her becoming a duchess be an expatriating act, whereby she could lose her U.S. citizenship?
Article I, Section 9, Clause 8 of the U.S. Constitution, commonly referred to as the Emoluments Clause, states:
It appears that there is nothing that directly prevents an “ordinary” U.S. citizen who does not hold office from receiving a foreign title and using it as she pleases, unless it leads her to pledge allegiance to a foreign power. Such a pledge of allegiance would, in the past, automatically lead to a loss of U.S. citizenship.
In the 11th Congress (1809-11), an amendment to the Constitution was passed but never ratified by the states. The proposed amendment stated:
Today, the U.S. does allow dual nationality, although it is generally disfavored. The Supreme Court ruled in Afroyim v. Rusk, 387 U.S. 253 (1967) that Congress may not divest a person of U.S. citizenship absent voluntary renunciation. Before the Supreme Court made this ruling, many women who married foreign nationals and lived abroad were stripped of their passports simply by taking an oath of allegiance. Currently, the U.S., following Supreme Court rulings, merely fails to recognize the second passport and requires that all U.S. citizens use only their U.S. passports to enter the U.S. So, even if Meghan becomes a U.K. citizen, she still must use her U.S. passport to visit the U.S., unless she has renounced her U.S. citizenship.
The U.S. Department of State warns that naturalizing in a foreign country, or taking an oath of allegiance to a foreign country are potentially expatriating acts under INA § 349 (8 U.S.C. 1481), as amended. However, U.S. citizens are subject to loss of nationality only if they perform certain specified acts voluntarily and with the intention to relinquish U.S. nationality. Will Meghan’s acceptance of the tile of Duchess of Sussex be both voluntary and with the intention of renouncing? It would appear not. Fortunately for her, a natural born citizen cannot merely lose her citizenship without the intent to relinquish.
The second interesting issue concerns any children Meghan and Prince Harry may have. A child born abroad to a U.S. citizen may automatically derive U.S. citizenship through his or her parent. Specifically, under INA § 301(g), a child born to one U.S. citizen parent and one foreign national parent will acquire U.S. citizenship at birth if the U.S. citizen parent was physically present in the United States for at least 5 years, including at least 2 years after turning 14 years of age. Given this requirement, any children born in the U.K. would automatically become U.S. citizens at birth, unless of course, Meghan renounces her citizenship first. Since Prince Harry is fifth in line to the British throne, could a U.S. citizen technically become the King or Queen of England?
This seems highly unlikely as any U.S. citizen would almost certainly be required to renounce their citizenship before becoming a British monarch.
The complex nationality issues don’t end there. For instance, if Meghan renounces her U.S. citizenship and subsequently divorces, how would she regain her U.S. citizenship? Would she need to be sponsored for a green card through her U.S. citizen parents in the family-based first preference category and be stuck in the 6 to 8 year waiting line to get a green card? What if her parents are no longer living and she has no other U.S. citizen relatives to sponsor her green card? Would she lose her U.K. citizenship and become a stateless refugee? Heavy is the head that wears the crown.